[Adopted as Art. V, § 18, of the General Bylaws]
In partial fulfillment of the obligation to see to the prudential
management of the Town's affairs and assets and in light of the continuing
technological revolution in telecommunications, the recent passage
of the Telecommunications Act of 1996 and the deregulation of the
electric and natural gas industries in the Commonwealth, the Town
hereby establishes a comprehensive and fair system of regulation for
all entities which desire to use the Town's rights-of-way.
A.
The purpose and intent of this bylaw is to:
(1)
Provide the Town with accurate and current information concerning
all facilities located in the Town's rights-of-way, together with
current information concerning entities owning or controlling the
facilities; and
(2)
Permit and manage reasonable access to the public rights-of-way on
a competitively neutral basis; and
(3)
Manage grants of location in public ways; and
(4)
Conserve the limited physical capacity of the rights-of-way held
in public trust by the Town; and
(5)
Assure that the Town is appropriately compensated when its rights-of-way
are utilized by nongovernmental entities; and
(6)
Assure that the Town's current and ongoing costs of granting and
regulating private access to and use of the public rights-of-way are
fully paid by the persons seeking such access and causing such costs;
and
(7)
Assure that the Town can continue to fairly and responsibly protect
the public health, safety and welfare.
As used in this bylaw, the following terms shall have the meanings
indicated:
Any person or entity, including, without limitation implied,
public utility, telecommunications carrier, local exchange carrier
or municipal department which owns or exercises general responsibility
and control over any facility.
The written application on a form prescribed by the awarding
authority with any required documentation and the application fee
by which an applicant or co-locator requests a right-of-way permit.
Such fee as may from time to time be established pursuant
to MGL c. 40, § 22F, and which shall accompany each application
for a right-of-way permit.
Any device, apparatus, appliance, equipment, wire or cable
or other thing, including any telecommunication facility installed
or proposed to be installed on or in any existing facility whether
by applicant or co-locator or proposed to be installed on any new
facility by applicant or co-locator.
The Select Board of the Town of Foxborough, which has authority
to exercise the powers granted by this bylaw.
[Amended 1-30-2023 STM by Art. 1]
Any person or entity other than applicant who desires to
use an existing or new facility.
All officers or employees of applicant or co-locator who
perform or any person or entity engaged by or on behalf of applicant
or co-locator to perform construction, repair or maintenance work
on overhead or underground facilities owned by applicant and permitted
by the awarding authority which are located in the right-of-way. The
contractor, for purposes of this bylaw and for all questions of liability
in connection with any construction, repair or maintenance work on
overhead or underground facilities owned by applicant which are located
in the right-of-way, shall be conclusively deemed an agent of applicant
or co-locator for whom applicant or co-locator is fully responsible.
The failure of the permit holder (including all contractors
or other agents of permit holder):
To pay when due any license rental;
To perform fully any covenant of the license or otherwise fail
to comply with any provision of the license agreement, the right-of-way
permit or the bylaw following 10 days' prior written notice to licensee
from Town;
To keep its certificate of insurance in full force and effect;
or
To provide the service that is outlined in its application (except
for interruptions in service due to emergency repair work) for a period
of six consecutive months.
The Department of Public Utilities created by MGL Chapter
25.
The date upon which this bylaw becomes effective.
Right-of-way work which must be commenced immediately to
correct a hazardous condition in which the safety of the public is
in imminent danger, such as a threat to life or health of the public
or where immediate correction is required to maintain or restore essential
public utility service.
The volume or capacity in any existing facility that is not
being used or is not proposed to be used as part of a concrete plan
for the future at the time that an application is made for a right-of-way
permit by an applicant or co-locator.
An overhead or underground facility which is in existence
on the date of the application for a right-of-way permit.
Any overhead or underground facility or attachment thereto,
including without limitation any utility or other pipe, duct, line,
pole, wire, cable, transmission line, conduit, pedestal, wave guide,
dish, antenna, electronic or other thing located or proposed to be
located in, on, above, along, under or across a right-of-way.
Federal Communications Commission.
An overhead or underground facility in existence on the effective
date.
Permission granted by the awarding authority of the Town
to a public utility, in order to conduct its regulated activities,
to locate poles, piers, abutments or conduits or attachments thereto
or railway routes on, in, above, along, under or across a public way
in accordance with the procedures set out in MGL c. 166, § 22,
MGL c. 161, § 70, MGL c. 162, § 8, and with this
bylaw.
An applicant or co-locator which is a public utility conducting
a business described in MGL c. 166, § 21.
That individual appointed or elected in accordance with MGL
c. 41, § 1, 66 or 69E.
That individual appointed by the Town to fulfill the responsibilities
set out in MGL c. 166, § 32.
An agreement between the Town and an applicant owner of a
facility setting forth detailed contractual terms and obligations
of the owner of a facility and entered into incident to the grant
of a right-of-way permit.
A contractor who holds a current and valid public works construction
license issued by the awarding authority.
Every person or entity that directly or indirectly owns,
controls, operates and manages plant, equipment or property within
the Town used or to be used for the purpose of offering telephone
service and which is licensed by the FCC and certified by the Department
under MGL Chapter 159 as a local exchange carrier.
Interference as defined by FCC Regulations (47 C.F.R.) which
affects the telecommunications services provided by a permit holder.
A material physical change to an existing facility such that
its use or capacity is materially altered.
An overhead or underground facility or an attachment that
has not yet been constructed but that is proposed and described in
an application for a right-of-way permit.
7:30 a.m. to 3:30 p.m. Monday through Friday, excluding holidays.
The area in square feet to be occupied by an overhead facility
(including space adjacent to the facility and rendered practically
unusable by others, whether because of physical limitations or potential
measurable interference or otherwise), all as reasonably determined
by the awarding authority. In the case of pole lines, for the purposes
of computing square feet, the width dimension generally shall be determined
with reference to the maximum distance that protuberances such as
crossarms, guy wires, etc. extend perpendicularly from the center-line
of the poles. Also included in the license for a pole, and at no additional
rental, is the right to penetrate the surface of the right-of-way
to the depth reasonably necessary to support the pole.
The volume measured in cubic feet occupied by an underground
facility (including space adjacent to the facility rendered practically
unusable by others, whether because of physical limitations or potential
measurable interference or otherwise), all as reasonably determined
by the awarding authority.
Any tower, telecommunication facility and pole, including
poles and overhead wires and associated overhead structures, including
attachments located or proposed to be located above the surface of
the right-of-way, including the underground supports and foundations
for such facilities.
The annual dollar amount to be paid by an applicant to the
Town for using the right-of-way for an overhead facility.
Shall have the meaning ascribed to it and shall be computed annually as set out in § 235-29A of this bylaw.
An applicant or co-locator to whom a right-of-way permit
has been granted.
The period commencing on the date of filing of an application
and ending upon the earlier to occur of:
The Planning Board of the Town of Foxborough.
An attachment which is a wire or cable for transmission of
intelligence by telegraph, telephone or television, including cable
television, or for the transmission of electricity for light, heat,
or power or for the transmission of telecommunications services and
any related device, apparatus, appliance or equipment installed upon
any pole or in any telegraph duct or conduit owned or controlled in
whole or in part by one or more public utilities.
Poles, towers, supports, wires, conductors, guys, stubs,
platforms, crossarms, braces, transformers, insulators, cut-outs,
switches, communication circuits, appliances, attachments, and appurtenances
located above ground, upon, along or across any public way or private
ways of the Town and used or useful in the transmission of intelligence
by electricity or otherwise, or for the transmission of television
signals, whether by electricity or otherwise, or for the transmission
of electricity for lighting, heating or power, or for the construction
or operation of a street railway or an electric railroad; provided
that said phrase shall not mean or include any of the following: poles,
towers, overhead wires and associated overhead structures used exclusively
in the transmission but not the distribution of electricity; poles
used exclusively for police and fire alarm boxes or any similar municipal
equipment installed under the supervision and to the satisfaction
of the engineer of the municipality; wires (exclusive of supporting
structures) crossing any portion of any underground utility district
from which overhead wires have been prohibited, or connecting to buildings
on the perimeter of such portion, when such wires originate in an
area from which poles and overhead wires and associated overhead structures
are not prohibited; overhead wires attached to the exterior surface
of a building by means of a bracket or other fixture and extending
from one location on the same building or to an adjacent building
without crossing any public right-of-way; radio antennas, their associate
equipment and supporting structures used by a utility for furnishing
communication services; and service terminals including transformers
in pedestals above ground used to distribute electric or communication
service in underground systems.
A gas and electric company subject to MGL Chapter 164, telephone and telegraph company subject to MGL Chapter 166, cable TV company subject to MGL Chapter 166A, water and aqueduct company subject to MGL Chapter 165, or street railway subject to MGL Chapter 161 or electric railroad subject to MGL Chapter 162.
The use of a facility by a public utility during the permit
term in conducting its regulated activities, but not including any
non-public utility use by such public utility or any use by a non-regulated
affiliate of a public utility or any other use by any other person
or entity.
Any road (including such appurtenances as berms, curbs, drains,
sewers, water mains, sidewalks and paved and unpaved shoulders within
the paper layout) to which the public has access and that the Town
is responsible for maintaining.
A license required of all contractors who are not officers
or employees of a public utility or of a municipal department who
wish to perform street opening work in the public ways of the Town.
The transmission of natural gas and electricity by a gas or electric company subject to MGL Chapter 164, the transmission of voice or telegraph messages by a telephone and telegraph company subject to MGL Chapter 166, the transmission of video broadcasts by television or cable television (including other activities deemed incidental thereto by federal law) subject to MGL Chapter 166A, the provision of street railway services subject to MGL Chapter 161 or transportation by electric railroad subject to MGL Chapter 162.
The surface and space on, along, above and below any real
property which is a public way or other way in which the Town has
an interest in law or equity, whether held in fee or other estate
or interest, or as trustee for the public, including, but not limited
to, any public street, boulevard, road, highway, freeway, lane, alley,
court, sidewalk, parkway, river, tunnel, viaduct, bridge, park, skyway,
or skyway bridge.
A permit granted by the awarding authority to an applicant
for permission to construct, to repair and maintain, and to use overhead
and underground facilities that it owns and which are located or to
be located in the right-of-way. Also a permit granted by the awarding
authority to a co-locator for an attachment to a new or existing facility.
Any construction, repair or maintenance of utility or other
pipes, ducts, lines, poles, wires, cables, conduits, pedestals, antennas,
dishes, electronics or other thing located in, on, above, under or
across a right-of-way.
Any cutting, excavating, compacting, construction, repair
or other disturbance in or under a public way, together with restoration
of the public way in accordance with the Town's Street Opening Bylaw[1] following such disturbance, but excluding the location
or relocation of utility poles for which a grant of location has been
obtained pursuant to MGL c. 166, § 22.
The transmission between or among points specified by the
user of information of the user's choosing without change in the form
or content of the information as sent and received.
Every person or entity that directly or indirectly owns,
controls, operates or manages plant, equipment or property within
the Town used or to be used for the purpose of offering telecommunications
service and which is licensed by the FCC and certified by the Department
under MGL Chapter 159 as a telecommunications common carrier.
A facility other than customer premises equipment used by
a telecommunications carrier to provide telecommunications service
and includes software integral to such equipment (including upgrades),
cables, wires, lines, wave guides, electronics, dishes and antennas.
The offering of telecommunications for a fee directly to
the public or to such classes of users as to be effectively available
directly to the public regardless of the telecommunications facilities
used.
Public Law 104-104, Feb. 8, 1996, 110 Stat. 56.
The Town of Foxborough.
Lines and associated structures used for the transmission
of electric energy sold, or to be sold, at wholesale in interstate
commerce.
Any pipe, duct, line and conduit and telecommunications facility
or other thing including attachments located or proposed to be located
under the surface of the ground, but excluding the underground foundations
or supports for overhead facilities.
The annual dollar amount to be paid by an applicant for use
of the right-of-way for an underground facility.
Shall have the meaning ascribed to it and shall be computed annually as set out in § 235-29B of this article.
The total usable capacity of any overhead or underground
facility located in the right-of-way as reasonably determined by the
awarding authority.
A.
No work in, on, under, along, above or across a right-of-way or use
of a right-of-way shall commence until the applicant and any co-locator
each shall have applied for and obtained from the awarding authority
a right-of-way permit.
(1)
Applicants with grandfathered facilities and any co-locator with
grandfathered facilities located in the right-of-way shall be deemed
to have applied for and been granted a valid right-of-way permit for
the permit term for such facilities and to be subject to all of the
provisions of the license agreement substantially in the form attached
hereto as Exhibit A.[1]
[1]
Editor's Note: Exhibit A is on file in the Town offices.
(2)
An applicant or co-locator which wishes to continue to use a grandfathered
facility after the expiration of the permit term each must file an
application and treat such facility as a new facility. From and after
the Effective date, applicant or co-locator must also obtain a right-of-way
permit for any modification of or new attachment to a grandfathered
facility.
(3)
Any applicant or co-locator who is using a grandfathered facility
for any purpose other than a public utility use must notify the Town
of such use of each such facility within 120 days after the effective
date. Any applicant or co-locator which after the effective date wishes
to make a use of its grandfathered facility which is not a public
utility use must, prior to commencing such use, apply for and obtain
a right-of-way permit for such non-public utility use.
B.
Traffic lights, fire hydrants, mail boxes and intrusions in the right-of-way
that are accessory uses to the primary use of the property such as
awnings, balconies, overhanging signs and sidewalk cafes are exempted
from this bylaw.
C.
Prior to the Town accepting a private way as a public way, such applicant
with a facility located in, on, under or across the private way and
each co-locator using such facility, including a co-locator public
utility, shall apply for and obtain a right-of-way permit from the
awarding authority.
D.
A public utility that is petitioning for a grant of location in accordance
with MGL c. 166, § 22, MGL c. 161, § 70, or MGL
c. 162, § 8, as part of its application for a right-of-way
permit shall so indicate on the application. A right-of-way permit
granted to a public utility for a facility to the extent of public
utility use shall constitute a grant of location as well.
E.
No right-of-way permit shall be granted unless applicant demonstrates
to the reasonable satisfaction of the awarding authority that sufficient
existing capacity remains in existing facilities to accommodate an
attachment or that applicant will construct new facilities in accordance
with the requirements of this bylaw. Except for transmission lines,
in the event that all of the usable space of existing overhead facilities
has been used up, the Town may in its reasonable discretion require
that the applicant construct new underground facilities.
F.
All construction work contemplated by this bylaw shall be done in
a good and workmanlike manner using best engineering and construction
practices and shall be done in accordance with (i) all applicable
laws and regulations, (ii) all of the provisions of this bylaw, (iii)
any conditions contained in the right-of-way permit, and (iv) such
reasonable supplemental instructions not inconsistent with the foregoing
as the awarding authority or its authorized representative may from
time to time issue. Work that involves street opening work must comply
with the Town's Street Opening Bylaw.[2]
G.
No person or entity may perform any work in or under a right-of-way
unless it is a permit holder and:
A.
Information required of all applicants and co-locators. Applicants
or co-locators seeking a right-of-way permit shall file, on forms
designated by the awarding authority, a completed and signed application
at the office of the awarding authority which shall include the following
information:
(1)
The identity and legal status of the applicant or co-locator, including
any parent or affiliated corporation.
(2)
The address and telephone number of the corporation and the name
of the officer, agent or employee responsible for the accuracy of
the application.
(3)
If a public utility (or municipal department), the federal identification
number of the entity. All others must in addition specify their FCC
license number and submit evidence of certification by the Department.
(4)
A general description of applicant's existing overhead or underground
facilities within the Town that it is using to provide service and
the service that it is currently providing.
(5)
A detailed description of the service that applicant or co-locator
intends to offer or provide to persons, firms, businesses or institutions
within the Town and whether the use of the facility to provide the
service will constitute a public utility use.
(6)
A detailed description of the underground or overhead facilities
applicant or co-locator intends to use or construct, their useful
life and full dimensions of the proposed facility, including but not
limited to, the following: height of poles, number of wires and their
diameter, height of wires above the right-of-way, voltage of electric
transmission lines, diameter of mains and conduits.
(7)
Maps or plans showing the exact location of the existing or proposed
new facility in the right-of-way using engineering metes and bounds,
street names and intersecting street names. Show a North arrow.
(8)
A statement as to whether new facilities will be built or existing
facilities will be used and who is the applicant with respect to such
facility.
(9)
In the case of a co-locator seeking a permit for an attachment to
a facility, the applicant of which is exempt in whole or part from
the obligation to make annual license rental payment for the facility
as provided herein, such application shall be made jointly by applicant
and co-locator. Each must sign the application and applicant must
acknowledge in a writing, in form and substance satisfactory to the
Town, its obligation to pay the amount, if any, of annual license
rental payment due the Town in respect of such attachment.
(10)
The names of co-locators who share or will share the facility.
Applicants must provide evidence that co-locators have received their
own right-of-way permit and identify all pending co-locator applications.
(11)
Evidence that applicant or co-locator has obtained all other
governmental approvals and permits needed to use existing facilities
and to offer or provide services.
B.
Petitions for grants of location. Applicants or co-locators that
are public utilities and that are seeking a grant of location as part
of the right-of-way permit shall also provide the following information
as part of the application:
(1)
A statement as to the demonstrated need to construct the new facility
or make an attachment to an existing facility.
(2)
A list of abutters' names and addresses.
(3)
The kind, size and tested strength of supporting or service wires
for poles.
(4)
The maximum voltage that will be transmitted over wires and the maximum
cubic feet of gas that will be transported through mains.
(5)
The size and pressure of gas mains and what the main is made of.
(6)
A list of all posts, poles or other supports of wires included in
the grant of location.
(7)
The number of cross arms in use with each pole and the number of
wires that are already attached thereto and the number of wires that
are proposed.
(8)
The location of conduits and manholes in relation to the existing
underground facilities and proposed new underground facilities.
C.
Applications for new facilities must submit additional information.
If new facilities are to be constructed, applicant must submit the
following additional information as part of the application:
(1)
Preliminary engineering plans, specifications and a site plan of
the facilities to be located within the right-of-way at a scale of
one inch equals 40 feet which shall show:
(a)
All property lines;
(b)
The exact location of the proposed new facilities; and
(c)
Existing facilities, streets, landscape features, residential dwellings,
and all buildings located within 500 feet of the new facility prepared
by a registered professional engineer or other qualified professional.
(2)
A network map showing the location and route of the new facilities
superimposed on the public ways of the Town on a scale of one inch
equals 100 feet prepared by a registered professional engineer or
other qualified professional.
(3)
The location of all existing facilities located along the proposed
route.
(4)
The specific trees, structures, improvements, facilities and obstructions,
if any, that applicant proposes to temporarily or permanently remove
or relocate.
(5)
Evidence as to what, if any, excess capacity is available for attachments
to existing facilities located along the proposed route, with a specification
of how much excess capacity will exist after the installation of the
new facility. If co-location is not proposed, an affidavit attesting
to the fact that applicant made diligent but unsuccessful efforts
to obtain permission to install or co-locate new facilities on existing
facilities, the reason for the denial of co-location and whether an
appeal to the Department has been adjudicated.
(6)
If new facilities are to be constructed, the excess capacity that
will exist in or on them after their installation and use by the applicant
and any identified co-locator.
(7)
The useful life of the proposed facility or attachment.
(8)
Information as to the type and frequency of any telecommunications
equipment that will be installed.
(9)
A preliminary construction schedule and completion date.
(10)
Financial statements prepared in accordance with generally accepted
accounting principles demonstrating applicant's financial ability
to construct, operate, maintain, relocate and remove the proposed
facilities.
(11)
Information in sufficient detail to establish applicant's technical
qualifications, experience and expertise regarding the facilities
to be constructed and operated.
(12)
Evidence that applicant has obtained all other governmental
approvals and permits needed to construct the new facilities.
(13)
The name of the licensed contractor who will perform the construction
work or a copy of the public works construction license that applicant
has obtained from the Town.
(14)
An application fee.
(16)
Such other and further information as may be reasonably required
by the awarding authority.
A.
Upon receipt of a completed and signed application, it will be forwarded
to the Highway Superintendent, Planning Board and the Inspector of
Wires for review. The Highway Superintendent, Planning Board and Inspector
of Wires shall promptly review the application and make written recommendations
concerning approval to the awarding authority and, if appropriate,
shall include recommendations concerning permit conditions and supplemental
instructions.
B.
If the application involves the construction of new facilities, the
modification of existing facilities or a program of attachments and
the total construction cost of any of the foregoing is estimated to
exceed $1,000,000, the Town may require the applicant to enter into
an agreement with the Town to reimburse the Town for the reasonable
cost of engineering review by the Town's consultant of the plans submitted.
Applicants shall submit a deposit to secure the cost of this review,
which will be held in a segregated account in accordance with MGL
c. 44, § 53G.
C.
If the right-of-way application includes a petition of the applicant
for a grant of location, the awarding authority shall promptly schedule
a public hearing and, if required by statute, publish a public notice
of the hearing. Owners of property abutting the property on which
the new facility is proposed will be notified by the Town at least
14 days prior to the public hearing and given the opportunity to speak
at the public hearing and present evidence.
D.
The awarding authority shall review the application, any evidence
presented at a grant of location public hearing, and the recommendations
received from the Highway Superintendent, Planning Board and Inspector
of Wires and make a prompt determination on the application, taking
into account the recommendations received, testimony and evidence
presented, if any, and such other facts as it may reasonably consider
such as:
(1)
The likelihood that the new facility will incommode the public use
of public ways or endanger or interrupt navigation.
(2)
The financial and technical ability of the applicant or co-locator
to construct new facilities or to use the right-of-way.
(3)
The capacity of the right-of-way to accommodate the proposed new
facilities, modifications or attachments.
(4)
The capacity of the right-of-way to accommodate additional new facilities
if the permit is granted.
(5)
Potential damage or disruption (including measurable interference
with telecommunications services) to existing facilities or public
property if the permit is granted.
(6)
The effect, if any, on public health, safety and welfare if the permit
is granted.
(7)
The availability of alternate routes and/or locations for the proposed
new facilities.
(8)
Applicable federal and state laws and Town bylaws which might prohibit
or affect the permit if granted.
E.
If the application is considered favorably, a right-of-way permit
containing such conditions and supplemental instructions as the awarding
authority reasonably deems appropriate shall promptly issue upon the
satisfaction of any conditions precedent which the awarding authority
may establish. If the application is not favorably considered, the
awarding authority shall communicate in writing to applicant or co-locator
the reasons its application was not favorably considered.
F.
If a grant of location has been requested as part of the application
for a right-of-way permit and the application has been considered
favorably, the right-of-way permit shall also constitute an order
granting the location. The grant of location will specify where the
new facility or attachment may be placed, and (with the exception
of grants of location for transmission lines) the kind of poles, piers
or abutments which may be used, the number of wires or cables which
may be attached thereto, the height to which the wires or cables may
run and the maximum voltage between conductors to be carried through
same. Grants of locations for poles are limited to one pole per location.
The grant of location may contain such other conditions and supplemental
instructions as the awarding authority reasonably deems appropriate.
A.
Conditions of permit. All right-of-way permits granted are conditioned
upon:
(1)
The applicant having obtained and submitted to the awarding authority, prior to construction and installation of its new facilities, a bond as required in Subsection K(2) hereafter;
(2)
Permit
holder's agreement to make any excess capacity of its facility available
to other applicants on commercially practical and technically feasible
terms;
(3)
To
the extent feasible and subject to reasonable availability and agreement
between a telecommunications carrier and the Town concerning price,
maintenance, access and security, interconnection of the new telecommunications
facility with public buildings; and
B.
Permit term. Rights-of-way permits shall be valid for the period
commencing on the date of filing of an application and ending upon
the earlier to occur of: (i) the expiration of the useful life of
the facility as reasonably determined by the awarding authority or
(ii) 30 years from the date of the application. A permit holder desiring
to continue to use the facility after the expiration of the permit
term shall, not more than 180 days nor less than 90 days before expiration
of the current permit, file an application with the Town for a permit
as though the existing facility were a proposed new facility. Each
co-locator must also file for a new permit.
C.
Revocation of permits. Except to the extent that a right-of-way permit
also constitutes a statutory grant of location and current law limits
the ability of the awarding authority to revoke a grant of location,
the awarding authority, during the permit term, may revoke a right-of-way
permit granted hereunder after notice and hearing if it shall reasonably
determine that (i) Permit holder is in default (ii) permit holder
fails to construct the facilities for which a permit was granted within
six months of the granting of the permit (iii) permit holder has failed
to relocate its facility or attachment to a new location within the
designated time following an order from the awarding authority to
relocate such facility or attachment or (iv) if the awarding authority
determines that public necessity and convenience requires the revocation
of a grant of location held by a street railway. The permit holder
shall be given not less than 10 days' prior written notice of the
time and place of the hearing on revocation and shall have the opportunity
at the public hearing to present evidence.
D.
Removal of facilities. Following revocation of the permit or the
expiration of the permit term without an application to continue to
use the facility unless then-existing statutes shall require a different
result and, if ordered by the Town, permit holder shall cease using
the right-of-way. Permit holder shall remove all of its overhead and
underground facilities from the right-of-way and restore the area
to its original condition within six months following expiration or
revocation of the permit. In the event that the permit holder fails
to remove its facilities, the awarding authority may treat such as
abandoned property and, among other remedies, remove the facilities
and restore the area at the owner's sole cost and expense.
E.
Removal of unauthorized facilities.
(1)
With the exception of permits held by municipal departments and permits
held by public utilities, within 30 days following written notice
from the Town, any person or entity that owns, controls or maintains
any overhead or underground facilities located within the right-of-way
for which a permit has not been obtained and which is not a grandfathered
facility shall apply for a permit and may request a hearing before
the awarding authority and shall have the opportunity at the hearing
to present evidence. If the application for a permit is denied, applicant
shall, at its own expense, remove such facilities from the right-of-way
and restore the area to its original condition within six months of
the date of the denial of the permit.
(2)
In the event that the applicant fails to remove its facilities, the
awarding authority may treat such as abandoned property and, among
other remedies, remove the facility and restore the area at the owner's
sole cost and expense.
F.
Relocation of facilities due to public necessity.
(1)
The location of any overhead or underground facility covered by a
right-of-way permit may be changed by order of the awarding authority
if it determines in its reasonable discretion that public necessity
requires relocation of the facility. Except for emergency repair work,
applicant is required to notify all co-locators upon receiving an
order to relocate the facility from the awarding authority. Applicant
and all co-locators shall, at their own expense, relocate their facilities
to such location as shall have been approved by the awarding authority
within 90 days of the receipt of the order of the awarding authority.
Upon relocation, applicant shall promptly supply awarding authority
with "as built" plans of the relocated facility. Following the transfer
of the facility and any attachments from the existing facility to
the new facility, the existing facility shall be removed from the
site within 90 days from the date of the completion of the transfer.
(2)
Unless directly and proximately caused by the willful, intentional
or malicious acts by the Town, the Town shall not be liable for any
damage to or loss of any overhead or underground facility located
in the right-of-way as a result of or in connection with any public
works, public improvements, construction, excavation, grading, filling
or work of any kind in the right-of-way by or on behalf of the Town.
Rights-of-way permits and grants of location for facilities that have
been ordered to be relocated will be amended to reflect the new location
once the facilities have been relocated.
G.
Assignment of facilities. Except in connection with a transaction
to which MGL c. 166, § 15B, applies, a right-of way permit
is not assignable. If a permit holder transfers ownership or use of
its facilities to another entity, such entity must apply for and receive
its own permit in accordance with this bylaw.
H.
Nonexclusive grant. No permit granted under this bylaw shall confer
an exclusive right, privilege, license or franchise to occupy or use
the right-of-way of the Town for delivery of services or any other
purposes. No permit granted under this bylaw shall convey any right,
title or interest in the right-of-way but shall be deemed a license
to use and occupy the right-of-way in accordance with the terms of
this bylaw and the Town of Foxborough Right-of-Way License Agreement.
Further, no permit shall be construed as a warranty of title. A permit
granted shall be limited to a license to use only that specific portion
of a right-of-way as specified in the plan that accompanies the application
and in any permit or license agreement.
I.
Co-location of facilities. Issuance of a right-of-way permit is conditioned
upon the agreement of the applicant to make excess capacity available
to other co-locators on commercially practical and technically feasible
terms. All new facilities for which a right-of-way permit has been
issued shall be constructed, installed and located in accordance with
the following terms and conditions:
(1)
Attachments shall be installed within existing underground or overhead
facilities whenever excess capacity exists within such existing facility.
(2)
Whenever existing facilities have been required by the Town to be
located underground within a right-of-way, no permit will be granted
for an overhead facility.
(3)
Whenever any existing facility is required by the Town for reasons
of public necessity to be relocated, each applicant owner shall relocate
its facilities within a reasonable period of time and all co-locators
who share the facility shall, absent extraordinary circumstances or
undue hardship as determined by the awarding authority, also relocate
their attachments concurrently to minimize the disruption of the right-of-way.
(4)
Whenever new underground facilities must be constructed because the
excess capacity of existing facilities has been exhausted, applicant
shall anticipate its needs for at least 30 years and is encouraged
to construct new underground facilities sufficient to meet its needs
for this time period as well as provide excess capacity to co-locators
on commercially practical and technically feasible terms.
(5)
The Town reserves the right to place, free of charge, signal circuits,
signal supply circuits and the equipment attached to these circuits
belonging to the Town and used by it exclusively for municipal purposes
on or in all existing facilities with excess capacity and on or in
new facilities then owned or controlled by an applicant which is a
public utility and shall be allowed access whenever necessary to place,
maintain or remove its wires and cables.
J.
Insurance.
(1)
The permit holder shall acquire and continuously maintain while it
possesses a right-of-way permit liability insurance coverage on all
personnel and equipment used to construct, operate, maintain and repair
the overhead and underground facilities located within the right-of-way.
This insurance must be with insurance companies licensed to do business
in the Commonwealth of Massachusetts and shall contain the following
coverages and be in the following minimum amounts:
|
Commercial general liability insurance- including operation,
independent contractors, complete operations for a period of one year
from completing the street opening work, XCU hazards, broad form property
damage and personal injury.
| |||
|
General aggregate:
|
$2,000,000
| ||
|
Products and complete operations
| |||
|
Aggregate
|
$2,000,000
| ||
|
Each occurrence
|
$1,000,000
| ||
|
Combined single limit
|
$1,000,000
| ||
|
Automobile liability insurance (covers owned, non-owned and
hired vehicles)
| |||
|
Bodily injury liability
|
$500,000 each person
| ||
|
$1,000,000 each accident
| |||
|
Property damage liability
|
$250,000 each accident
| ||
|
Combined single limit
|
$1,000,000
| ||
|
Worker's compensation and employer's liability
| |||
|
Each accident
|
$100,000
| ||
|
Disease - policy limit
|
$500,000
| ||
|
Disease - each employee
|
$100,000
| ||
(2)
Certificates of insurance shall provide for at least 30 days' notice
to the awarding authority of cancellation or material change. The
name of the municipality shall be listed as an additional insured
on the certificate of insurance.
K.
Construction requirements.
(1)
All permit holders are required to obtain a building and electrical
permit (if applicable), and (except for poles and attachments thereto)
a street opening permit from the awarding authority. Once commenced,
construction shall proceed at an uninterrupted and consistent pace
so that the right-of-way work described in the permit will be completed
within a reasonable time.
(2)
Bond.
(a)
Before commencing construction, permit holders shall submit
to the awarding authority a performance bond, with corporate surety
satisfactory to the awarding authority, in an amount equal to the
value of the construction, which shall assure:
[1]
The satisfactory completion of installation and commencement
of operation of the system in accordance with the terms of the permit;
[2]
The indemnity of the Town from and against any and all claims
for injury or damage to persons or property, both real and personal,
caused by the construction, and installation of the facilities authorized
pursuant to the permit;
[3]
The satisfactory restoration of adjoining property and public
property in accordance with the provisions of this bylaw.
(b)
This bond shall be maintained in force until one year after
the completion of the construction work.
(3)
Construction of new facilities must conform to the plan accompanying
the application and to the terms of the permit and license agreement.
All right-of-way work must conform to the Americans with Disabilities
Act and the Architectural Access Board Regulations as currently in
effect.
(4)
Right-of-way work shall comply with the following:
(a)
Working hours. Except for emergency repair work, right-of-way
work shall occur during normal working hours. Permit holder must give
notice of the intended right-of-way work 72 hours in advance to the
Highway Superintendent and, unless the requirement for a police detail
is waived by the Police Chief of the Town, must arrange for and pay
for a police detail to be present throughout the period of time that
the right-of-way work is being conducted.
(b)
Obligation to locate existing facilities. Permit holder or contractor
must inform itself as to the existence and location of all existing
facilities located in the same general area as the new facilities
are to be located and must confer with the owners thereof in order
to obtain information as to the vertical and horizontal locations
of the facilities and other conditions that might affect the right-of-way
work.
(c)
Noninterference with existing facilities. Permit holder or contractor
shall not interfere with an existing facility without the written
consent of the awarding authority and the owner of the existing facility.
If it becomes necessary to relocate an existing facility to accommodate
the new facility, this shall be done by its owner and the cost of
such work shall be borne by the permit holder.
(d)
Dig Safe. Permit holder shall, in accordance with MGL c. 164
§ 76D, notify all public utilities 72 hours in advance of
making any excavation in a public way. Such notification shall be
made by means of obtaining a DIG-SAFE number. Said number shall be
provided on the street opening application.
(e)
Protection of existing facilities. Permit holder or contractor
shall adequately support and protect by timbers, sheeting etc. all
existing overhead or underground facilities which may be in any way
affected by the right-of-way work and shall do everything necessary
to support, sustain and protect them under, over, along or across
such work area. Excavation work shall be performed and conducted in
such manner that it shall not interfere with access to fire stations,
fire hydrants, water gates, underground vaults, catch basins or any
other public structure.
(f)
Adjoining property. Permit holder or contractor shall, at all
times at its own expense, preserve and protect from injury any adjoining
property and shall take such precautions as may be necessary for this
purpose. Permit holder shall be responsible for all damages to public
or private property or streets resulting from its failure to properly
protect and carry out the right-of-way work.
(g)
Trees. Permit holder or contractor shall not remove, even temporarily,
any trees or shrubs which exist in the right-of-way work area without
first obtaining the consent of the Town. In the event a tree is either
accidentally destroyed by the permit holder or contractor or is authorized
for removal by the Town, permit holder or contractor shall remove
the tree, stump and debris from the work site and replace the tree
with an identical species with a minimum caliper of two inches in
the identical location.
(h)
Excavated material. Permit holder or contractor shall remove
all excess excavated materiel, surplus water, muck, silt, residue
or other runoff pumped or removed from excavations from the right-of-way
work site.
(i)
Temporary repairs of underground facilities. At the end of each day,
all trenches must be plated if repair work is not completed. No unplated
trenches are permitted overnight, and work in plated trenches must
be continually prosecuted to completion to minimize the time trenches
are plated.
(j)
Noise. Permit holder or contractor shall perform the right-of-way work in such a manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of neighboring property. The permit holder or contractor shall comply with all noise restrictions established in Chapter 167, Noise, of the Town Code.
(k)
Debris and litter. All debris and litter remaining from the
right-of-way work site shall be removed by the permit holder or contractor
in a timely manner.
(l)
Lawn surfaces and plantings. All lawn surfaces which are disturbed
during right-of-way work shall be replaced with sod or six inches
of screened loam, lime, fertilized and re-seeded with good quality
lawn seed. Any areas containing plantings shall be restored to their
original condition with the same or similar plantings.
(m)
Erosion control. Permit holder shall be responsible for all
erosion control and for obtaining any necessary permits from the Town.
Permit holder or contractor shall protect drainage structures from
siltation by whatever means required, including but not limited to
the installation of hay bales and/or filter fabric. In the event that
a drainage structure becomes damaged from siltation as a result of
the right-of-way work, permit holder or contractor shall clean the
structure before completing the right-of-way work.
(n)
As-built plans. Within 30 days following completion of construction
of new facilities, permit holder shall file with the awarding authority
complete as-built plans of the new facilities, including an accurate
map certifying the location of all facilities within the right-of-way
prepared by a registered professional engineer or other qualified
professional.
(o)
Tree trimming. Permit holders who own and maintain overhead
facilities are responsible for trimming trees or other vegetation
growing in the right-of-way to prevent their branches or leaves from
touching or otherwise interfering with the overhead facility. All
trimming or pruning shall be at the sole expense of the permit holder
and performed under the supervision of the Town.
L.
Emergency repair work. When notified by the Town, permit holder is
required to respond to calls for emergency repair work within two
hours of the notice and to commence repairs immediately upon arrival
at the site.
M.
Maintenance. Permit holder shall at all times employ ordinary and
reasonable care and shall install and maintain in use nothing less
than commonly accepted methods and devices for preventing failures
of overhead or underground facilities and accidents which are likely
to cause damage, injuries or nuisances to the public. Owners of poles
shall, upon the receipt of written notice served by the Inspector
of Wires, promptly make such substitution or repairs of such poles,
wires, posts, supports or attachments as may be required by the Inspector
of Wires.
Each applicant holding a right-of-way permit for a facility,
except to the extent exempt as provided in Subsection C hereafter,
shall make an annual license rental payment to the Town for the nonexclusive
right to use certain rights-of-way in the Town of Foxborough. Annual
license rental payments shall be computed as set out in Subsections
A and B hereafter.
A.
Overhead license rental payments.
(1)
The overhead license rental payment for each overhead facility shall
be computed by multiplying the occupied area of the facility by the
applicable overhead license rental rate.
(2)
The occupied area of an overhead facility shall be determined in
the reasonable discretion of the awarding authority.
(3)
The overhead license rental rate shall be determined annually by
the awarding authority within 60 days of the commencement of each
fiscal year utilizing assessment data for the fiscal year just ended.
The rate for the fiscal year in which an application is filed (or
the year of the effective date in the case of grandfathered facilities)
shall be the applicable rate for the entire permit term.
(4)
An annual overhead license rate shall be calculated by:
(a)
Determining the assessed value of all taxable land in the Town
for the previous fiscal year; and
(b)
Dividing the amount obtained in Subsection A(4)(a) by the total number of acres of land in Town subject to tax in that fiscal year and by expressing this quotient on a dollar per square foot basis (this represents a reasonable method to derive the value of the Town's investment in its rights-of-way); and
(c)
Determining, in the reasonable judgment of the awarding authority,
the Town's combination of these two items shall be expressed as an
amortization constant. (This constant represents the Town's reasonable
judgment of the term over which the Town should recover its investment
in its rights-of-way and a reasonable return on such investment.);
and
B.
Underground license rental payment.
(1)
The underground license rental payment for each underground facility
shall be computed by multiplying the occupied volume of the facility
by the applicable underground license rental rate.
(2)
The occupied volume of an underground facility shall be determined
in the reasonable discretion of the awarding authority.
(3)
The underground license rental rate shall be determined annually
by the awarding authority within 60 days of the commencement of each
fiscal year utilizing assessment data for the fiscal year just ended.
The rate for the fiscal year in which an application is filed (or
the year of the effective date in the case of grandfathered facilities)
shall be the applicable rate for the entire permit term.
(4)
An annual underground license rate shall be calculated by dividing the product obtained from the calculation described in Subsection A(4)(d) above by the usable depth of the rights-of-way in the Town of Foxborough as reasonably determined by the awarding authority and expressing the quotient so obtained in dollars per cubic foot.
C.
Exemption from rental payments. Applicants utilizing facilities (which
includes use by co-locators) on the terms described below shall be
exempt from the payment of underground or overhead license rental
payments during the periods described as follows:
(1)
Applicants which are municipal departments to the extent that such
facilities are used only for municipal purposes are exempt from the
payment of rental payments hereunder.
(2)
Applicants with grandfathered facilities shall be exempt from the
payment of rental payments to the extent of the type and extent of
the uses being made of such grandfathered facilities as of the effective
date and during the period commencing on the effective date and ending
on the expiration or earlier termination of the permit term.
(3)
Applicants with grandfathered facilities which after the effective date propose to make uses of them, or allow co-locators to make uses of them, which are not public utility uses, shall have the exemption described in Subsection C(2) above reduced pro-tanto as reasonably determined by the awarding authority and shall forthwith begin paying a pro-tanto portion of the annual rental payment for the use of the facility no longer subject to exemption. The rental payment shall be calculated as described above and the calculation shall utilize the fiscal year in which the application for nonexempt use is made. The pro-tanto nonexempt portion of the annual rental payment shall be reasonably determined by the awarding authority by comparing the portion of the occupied area or occupied volume subject to nonexempt use to the total occupied area or occupied volume of the facility. Evidence of well-established uniform practices evidenced by written policies or procedures of applicants in establishing pole attachment fees or other similar charges to co-locators or in allocating costs among affiliates shall be considered as prima facie evidence in determining reasonable allocation by the awarding authority.
(4)
Applicants with new and existing facilities which after the effective date propose to make public utility use or allow co-locators to make public utility use of a facility shall be pro-tanto exempt during the permit term from the payment of the appropriate annual rental payment otherwise payable with respect to such facility to the extent of its public utility use determined as set out in Subsection C(3) above.
(5)
The routine replacement of a portion of a facility or a minor adjustment
of the location of part of a facility (such as the replacement or
relocation of a pole or replacement of wires or cables) in situations
where the use and capacity remain unchanged in some circumstances
may require an applicant or co-locator to file an application for
a right-of-way permit but in such situations the exempt status of
the facility shall not be affected.
(6)
All exemptions except those for municipal departments shall end upon
the end of the initial permit term, but in no event later than 30
years from the effective date unless then applicable law shall require
a continuation of the exemption.
A person or entity aggrieved by a decision of the awarding authority
under this bylaw may appeal such decision to the appropriate court
of competent jurisdiction or, to the extent applicable law provides,
to the Department or the FCC.
If any clause, section, or other part of this bylaw shall be
held invalid or unconstitutional by any court of competent jurisdiction,
the remainder of this bylaw shall not be affected thereby but shall
remain in full force and effect.
Notwithstanding any provision of this bylaw to the contrary,
any (i) applicant that holds a valid license issued by the Town pursuant
to MGL c. 166A, § 3 (a "CATV license"); or (ii) applicant
that is a public utility and that holds a valid grant of location
issued pursuant to MGL Chapter 166 to install, maintain and operate
its facilities in the rights-of-way shall not be required to submit
to the Town an application for permission to install, maintain or
operate facilities legally authorized by such applicant's CATV license
or grant of location and shall be exempt from complying with the provisions
of this bylaw, provided, and to the extent that, such applicant's
CATV license or grant of location authorizes the applicant to install,
maintain and operate its facilities in the Town and provided that
such applicant remains in compliance with all the requirements and
conditions of:
